Employment Matters Newsletter, Fall 2015

Fall 2015 • employmentmatters@jamsadr.com • jamsadr.com/employment • 800.352.5267 • Page 1
VOL. II, FALL 2015
IN THIS ISSUE
With Experimental Benefits
Come Additional Legal
Considerations ....... page 1
Free Speech or Hostile Work
Environment? ........ page 1
Joint Sessions in Employment
Cases: Should Parties Make
Opening Statements?. . page 4
Your Client’s Guide to the
Employment Mediation
Galaxy. . . . . . . . . . . . . . page 5 (Continued on page 2)
(Continued on page 3)
With Experimental Benefits Come
Additional Legal Considerations
By Hon. Ellen James (Ret.)
Free Speech or Hostile Work
Environment?
By Hon. Sherrie L. Krauser (Ret.)
Corporate experimentation, combined with
innovative employment practices designed
to promote more flexible work environ-
ments, may be transformative. These
practices, if implemented properly and
with the right intention, have the potential
to dramatically change the workplace for
the better. However, if introduced hastily
with unstated goals that are inconsistent
with the goals more publicly stated, these
practices may be harmful to employees
and company morale, potentially leading to
lawsuits against the employer for labor and
employment law violations.
These programs, which are being imple-
mented by many start-up companies as
well as larger corporations such as Netflix,
Virgin America, Best Buy, Microsoft and
GE, provide salaried employees with unlim-
ited paid time off. If the company culture
is aligned with stated purposes and goals,
A. A Free Speech Minefield
1. A newly appointed vice-president
uses a corporate decorating allowance
to install a personal collection of Civil
War memorabilia, including a
Confederate battle flag draped
on the wall, visible to visitors
and employees.
2. An employee puts up a purportedly
current map of the Middle East,
with the region including Israel
covered by the label “Palestine.”
A supervisor overhears co-workers
calling the employee a terrorist.
3. A transgender employee asks to
change their identification in the
company directory and letterhead
from “Mr. Carl X” to “Ms. Carol X”
before completing their transformation.
The Human Resources Director denies
the request, claiming the employee’s
identification must match Social
Security and income tax records.Fall 2015 • employmentmatters@jamsadr.com • jamsadr.com/employment • 800.352.5267 • Page 2
employees are empowered to manage
their work and personal schedules in
a way that serves their needs so long
as they are getting their jobs done.
Employers ultimately benefit from such
policies because they can lead to a
more engaged workforce and reduce
administrative overhead by removing
the need to process and track vacation,
family leave and sick time usage.
When the company culture and the
practice are not so aligned, the reality
can be quite different. In this environ-
ment, employees may be unsure how
much vacation time they can take in
comparison to their cohorts without
placing their jobs in jeopardy. Under
the unlimited paid time-off policy, these
employees may end up taking fewer
vacation days than they had previously
taken, leading to higher burnout rates,
lower job satisfaction, lower productivity
and an unhealthy balance between
work and home demands. Mutual trust,
where both worker and employer agree
not to abuse the system, is the key to
ensuring that these new practices
work effectively.
Recently, Tribune Publishing, the parent
of the Los Angeles Times, implemented
an unlimited paid time-off policy for all
of its salaried non-union employees.
This policy was quickly rescinded,
however, after employees at the compa-
ny complained and threatened to sue.
According to the employees, the new
discretionary policy would remove the
monetary value of the vacation days that
long-term staffers had accrued over the
years. This would have prevented staff-
ers from cashing out those days when
they left the company. The new policy
also stated that each day off would be at
the discretion of the employee’s supervi-
sor, which may have lead to
less actual usage.
In contrast, Evernote and Travis CI have
recently implemented time-off policies
that align the companies’ cultures
with their practices. Not only does
Evernote offer its employees unlimited
paid vacation each year, the company
recently implemented a policy whereby
employees forfeit a $1,000 bonus if they
fail to take an entire week off at one
time during the year. Travis CI recently
implemented a policy setting a required
“floor” on employee vacation days: Each
employee is required to take at least 25
days off per year.
Similar reforms are evolving in family
leave policy. Microsoft is planning to
significantly increase paid family leave.
Netflix recently rolled out a family leave
policy providing new parents (men and
women) unlimited time off during the
first year after the birth or adoption of
a child. Employees receive normal pay
during this first year and may choose
to take time off, go part-time or work
full-time. These changes go above and
beyond what most companies in the
United States offer, but not all employ-
ees at the company will benefit from
this change. Only salaried employees
in Netflix’s streaming division receive
the new coverage. Employees who work
in the DVD division or those who work
in corporate customer service will not
receive this benefit, which may cause a
rift in the company’s ranks.
It is worth noting that under the Family
and Medical Leave Act, an employee’s
job is only guaranteed for up to 12
weeks of unpaid family leave time.
The United States, contrary to most
European countries, does not have laws
requiring paid family leave. The benefits
available to salaried versus non-salaried
workers create an environment of de
facto inequality. Further, the Obama
administration is trying to restore protec-
tions for hourly workers, including extra
overtime pay, requiring federal contrac-
tors to give their workers paid sick leave
and addressing the misclassification of
workers as independent contractors.
In today’s emerging world of experi-
mental and flexible work environment
practices, there are benefits and risks
for both employers and employees. With
the proper policy and company culture,
these practices assist high-performance
organizations to recruit and retain
motivated, responsible employees who
can then balance their personal and
professional lives. With opportunities to
take time off to refresh and recharge,
employees will return to work less
stressed and more committed. Compa-
nies whose policies and culture are less
aligned, however, risk low morale and
confusion as to what is expected. These
foreseeable disputes lend themselves to
mediation rather than litigation. When
disagreements do arise, the impact of
these innovations, whose thrust is to
benefit both employees and employers,
are best resolved through the flexible
process afforded by alternative dispute
resolution.
Many companies may innovate and
adapt their procedures to accommodate
an evolving market of highly sought after
employees. We cannot be deluded that
the visionary policies of various entities
are a substitute for basic workers’ rights
for both salaried and non-salaried
employees. Enhanced workers’ protec-
tions need to be enforceable for a broad
spectrum of businesses. Experimenta-
tion with vacation, sick leave and family
leave, job classifications and lowered
overtime pay is no substitute for the
foundational fairness that laws and court
decisions provide. The courts, therefore,
must remain vigilant and receptive to
monitoring all employees’ and employ-
ers’ rights. n
Hon. Ellen Sickles
James (Ret.) is a
JAMS neutral based
in San Francisco. She
has served throughout
the United States as
a mediator, arbitrator,
Judge Pro-Tem and
Special Master in multi-party, complex
personal injury, wrongful death and
employment cases. She can be reached
at ejames@jamsadr.comFall 2015 • employmentmatters@jamsadr.com • jamsadr.com/employment • 800.352.5267 • Page 3
If you are an attorney consulted by an
employee upset about one of these
scenarios, you must consider how to
best satisfy your client’s concerns.
If you are corporate counsel asked for
advice, you must determine how the
law will treat these scenarios—and how
your legal opinion may affect employee
morale.
From either position, you may want to
help this company reclaim a safe work-
place for everyone, rather than engage
in protracted, costly litigation.
B. The Law
Federal law has prohibited an employ-
er-sanctioned hostile work environment
for more than 50 years.¹ The sanctions
and penalties have not changed sub-
stantially, and they still prohibit perva-
sive, repeated discriminatory conduct
based on an employee’s sex, race
or religion.²
But what constitutes discriminatory
conduct reflects changing social mores
and may expand to include criteria such
as sexual orientation, gender identifica-
tion and marital status.
C. The More Things
Change...
Fifty years ago, employees or super-
visors might have openly told racially
offensive jokes, taunted female employ-
ees with sexually suggestive remarks or
actions or denied an employee’s request
for leave during religious holidays.
Have things really changed? Today,
sexual harassment may be based on
cultural differences between Ameri-
can-born and African-born persons
of color.³ Religious and national-origin
discrimination may merge in the case
of foreign-born Muslims.
4
And in the
era of anonymous, electronic contacts,
some harassment may still occur in the
old-fashioned way: racially or sexually
charged threats in an unsigned note,
ignored by an employer.
5
Our increasingly diverse society brings
people from different backgrounds
together daily, including in the work-
place. While knowledge and familiarity
can and should increase tolerance
and understanding, we seem to be at
the beginning of a new learning curve,
much like the early 1960s.
So while religious intolerance and
discrimination may still be directed
toward Jews, the victims today may also
be Muslims, Christians and members
of other religious faiths. And sexual
harassment, once recognized only
against heterosexual women, may now
include that directed toward members of
the LGBT community as well.
In the 1960s and 1970s, feminists ad-
opted the title “Ms.” to include married
and unmarried women, objecting that
a woman’s marital status should not be
relevant in their professional lives. Today,
we have a new title, “Mx.,” which may
refer to transgender persons, but may
also be preferred by some same-sex
married couples. So whether you call an
employee “Mr.,” “Mrs.,” “Ms.” or “Mx.”
may be either an offensive choice, an
erroneous assumption or polite.
D. What to Do?
There are many possible avenues of
recourse, starting with training super-
visors to recognize harassment and
discrimination against any employee.
Although litigation is always an option,
it’s not often the best option.
Each of the introductory scenarios could
benefit from mediation. Skilled neutrals
can help employees, supervisors and
HR personnel resolve an immediate
problem and build a respectful, cooper-
ative work environment.
Social mores change; the law adapts,
often through the costly and lengthy
processes of litigation and legislation.
Rather than enduring a costly litigation,
through both money and time spent,
consider employing an ADR system to
defuse a hazardous work environment,
reduce personnel turnover and promote
business efficiency. n
Hon. Sherrie L.
Krauser (Ret.) is a
JAMS neutral based
inMaryland. Her broad
experience, including
her special expertise
in resolving complex
civil and employment
litigation, informs her efforts to help
parties resolve diverse issues in the
context of fair and efficient ADR
proceedings. She can be reached at
skrauser@jamsadr.com.
Free Speech or Hostile Work Environment? (Continued from page 1)
¹ Civil Rights Act of 1964, 42 U.S.C. §2000, et seq.;
Title VII, 42 U.S.C. §1981.
² National R.R. Passenger Corp. v. Morgan, 536 U.S. 101
(2002).
³ Stewart v. Rise, Inc., 791 F. 3d 849 (8th Cir. 2015).
4
Kamel v. Sanofi Pasteur, 2015 WL 926427 (United
States District Court, M.D. Pa. 2015).
5
Pryor v. United Air Lines, Inc., 791 F. 3d 488
(4th Cir. 2015).Fall 2015 • employmentmatters@jamsadr.com • jamsadr.com/employment • 800.352.5267 • Page 4
Robin H. Gise, Esq.
is a JAMS neutral
based in New York.
She is an experienced
mediator and arbitrator
specializing in
business/commercial,
employment,
insurance and construction
disputes. She can be reached at
rgise@jamsadr.com.
When parties to an employment dispute
decide to mediate, an important issue is
whether they will make substantive pre-
sentations about the merits of the case
at the initial joint session. Both neutrals
and counsel differ significantly on this
question. Although much has been
written on the decline of the joint session
generally in mediation, employment
cases present particular dynamics that
can sway parties one way or the other.
An employment dispute—whether it
involves an individual employee claiming
discrimination, a group of employees
claiming wage and hour violations or an
executive seeking payment of a bonus—
often involves intense emotions on the
part of the employee and the employer.
Some attorneys, both employee and
employer’s counsel, believe that making
an opening presentation to the other
side will merely inflame emotions and
detract from settlement efforts. An em-
ployee’s lawyer may not want a client to
be subjected to the employer’s version of
why s/he was terminated, fearing that it
will be too painful. An employer’s lawyer
may believe that the client’s position will
only become more rigid and entrenched
after hearing from the former employee.
On the other hand, some attorneys
believe that a substantive opening
statement is meaningful and necessary.
It gives the employee a “day in court”
and an opportunity to tell the story
directly to the employer. It can also
communicate a certain message or
perspective. An employer’s lawyer may
want to convey to an employee that the
termination was a result of economic
factors, rather than performance, and
express the client’s empathy. In addition,
some employees’ lawyers insist that
the employee (as opposed to counsel)
make the presentation to the employer.
By having the employee make the
presentation, it sends a message that
the employee is fully engaged in the
mediation process. It can also demon-
strate to the employer how compelling
a witness this person will be if the case
does not settle.
As for neutrals, many are inclined to be
guided by the parties’ wishes. A neutral
who senses resistance from the parties
about opening statements will often
not insist on it. However, some neutrals
bemoan the declining use of substantive
opening statements and think that par-
ties are too quick to reject them. They
feel that parties are too worried about
difficult issues or emotions expressed in
front of the other side and, as a result,
may miss out on the potential opportuni-
ties to influence the case.
In certain employment cases, an
opening presentation is not appropriate.
For example, in a sexual harassment
case, an employee may not even want
to be in the same room as the alleged
harasser. However, in most cases,
there are arguments for and against a
joint session. It is important to consider
certain factors in making this decision.
First, are pre-mediation statements
going to be exchanged with the other
side, or will they be submitted only to
the mediator? The joint session gives the
parties an opportunity to speak directly
to the other side, and it may often be
the only time during the mediation that
they do so. If the parties choose not to
make opening presentations, it is up
to the mediator to convey their position
to the other side in the initial round of
caucuses. If pre-mediation statements
are exchanged, assuming they are
detailed and contain legal arguments,
a joint opening session is less critical in
this regard. However, where pre-media-
tion statements are not exchanged, the
mediator becomes responsible for all
communications between the parties.
If the litigation is at an advanced stage,
the parties’ legal positions will be
well-known, but the mediator will
still be charged with conveying
mediation positions.
Second, who is attending the mediation?
If the insurance carrier’s representative
is in the room and is not familiar with the
case and/or with the personalities on the
plaintiff’s side, a joint opening session
can help bring that person up to speed.
In addition, it is worth considering who
from the employer is attending the
mediation. Will the person who made
the decision to terminate the plaintiff’s
employment be there? Depending on
the personalities and the dynamics, it
can go either way.
Finally, in cases where damage
calculations are complex, such as in
wage and hour cases, an opening joint
session provides an opportunity for
employees’ counsel to explain the basis
for the calculations to the employer’s
counsel, saving a lot of time in the initial
caucuses. Even when the parties have
exchanged information about damage
calculations in advance of the media-
tion, an opening presentation focusing
on the critical points of their calculation
can be useful.
A more nuanced approach to determin-
ing whether to make opening statements
is recommended. Rather than reflexively
rejecting them, counsel should consider
certain factors in each case before
making their decision. n
Joint Sessions in Employment Cases:
Should Parties Make Opening Statements?
By Robin H. Gise, Esq.Fall 2015 • employmentmatters@jamsadr.com • jamsadr.com/employment • 800.352.5267 • Page 5
?
?
?
?
?
?
Experienced counsel, understanding
the risks of litigation and the benefits
of resolution, come to the mediation
fully prepared with the goal of
resolving the matter. How could the
mediation fail? The following factors
can often impact the successful
outcome of a mediation and are
particularly critical in employment
mediations, which can be more
emotionally charged than business
and commercial matters. Avoiding
these pitfalls can lead to a success-
ful mediation.
Pre-mediation
Misperceptions
Issues arise when there is a mispercep-
tion as to the parties’ actual positions
coming into the mediation. Prior to the
mediation, most parties have exchanged
demands, and in some cases, there
have been responses to those initial
demands. However, it is not unusual
if there has not been any “formal”
response to the demand, although there
may have been discussions between
counsel. Often counsel come away
with different understandings as to the
positions of the parties. This can impact
the process, particularly as counsel
prepare for the mediation.
It is important that the parties are
candid and clear in their pre-mediation
discussions in order to avoid unneces-
sary misunderstandings at the outset
of the mediation. Having these misper-
ceptions at the start of the process
impacts the credibility of the process,
adds confusion and detracts from
addressing the main issues and
purpose of the mediation.
The Unprepared Client
Regardless of the sophistication level
of the client, he or she needs to be
fully informed not only as to the case,
but also as to the mediation process.
Fully informing the parties about the
process should first come from counsel,
not from the mediator at the session.
That information should include what
will happen during the course of the
Your Client’s Guide to the
Employment Mediation Galaxy
By Hon. Judith M. Ryan (Ret.)
mediation from the caucusing, the ex
parte communications, the issues of
confidentiality and the amount of time
that could be involved (and thus the
patience often required).
Clients, even those with a high-level
of sophistication, should always be
given an overview of mediation if it
is their first time going through the
process. This overview can include
how offers are conveyed and the fact
that offers and responses may at first
have little resemblance to the ultimate
resolution. Additionally, it should be
explained that potential settlement
options may include monetary and
non-monetary components.
The client should also be prepared
for decisions that will be made if a
settlement is reached as to the set-
tlement agreement, disposition of the
settlement funds and any potential tax
considerations. These are matters that
should not be discussed for the first
time at the mediation.
Fall 2015 • employmentmatters@jamsadr.com • jamsadr.com/employment • 800.352.5267 • Page 6
Failure to Manage
Client Expectations
Managing the client’s expectations is
one of the most critical aspects of the
mediation process; the failure to do
so is often a major stumbling block
to a successful mediation. The client
needs to be educated as to what can
be anticipated in the litigation process,
including potential outcomes, costs of
pursuing the case and a realistic risk/
benefit analysis prior to coming to the
mediation. The client should not hear
about the potential downside for the
first time at the mediation.
Rushing the Process
The mediation process should then be
allowed to work—it takes time. Some
parties come to decisions faster than
others. Experienced counsel have
advised their clients to exercise patience
prior to coming to the mediation. The
matter will resolve when all parties are
comfortable with the decisions they
are making; not everyone comes to
that determination at the same time.
Remember, the time involved in the
mediation process is time that is not
involved in the litigation process.
Failure to Use the
Mediator Effectively
The parties have come to the mediation
to seek a resolution through the assis-
tance of a professional mediator, so
use the mediator. They have been
chosen because of prior background
and experience in the subject matter
and success in resolving such cases.
Utilize the mediator to facilitate the
process. Allow them to interact with
the client and give the client the ability
to express their position directly. Use
the mediator as a “partner” in the
process to work with the client and
not as an adversary. Give credence
to the mediator.
Conclusion
Mediating an employment case should
not be like going into an unknown gal-
axy. A failed mediation can be avoided
if the above pitfalls are recognized.
A successful mediation is the
result of preparation. Fully informed
clients with realistic expectations
can participate with counsel in the
mediation process and better achieve
successful resolutions. n
Hon. Judith M. Ryan
(Ret.) is a JAMS
neutral based in
Southern California.
She is known for her
keen ability to quickly
grasp the strengths
and weaknesses of a
case and is highly effective in guiding
parties toward settlement. She can be
reached at jryan@jamsadr.com.

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